Copyright Infringement: The Basics of a DMCA Notice for Online Content

I’ve been receiving calls from people alleging that someone is infringing on a their copyright (almost always online) and asking for information relating to what goes inside a Digital Millennium Copyright Act (“DMCA”) Notice so that they can try to get the alleged infringing content removed. While there is a full legal analysis that should go into whether or not submitting a DMCA notice would be proper, if you know that you are in the right, the following are the basics that need to go into a DMCA Notice:

Any DMCA removal request directed to a website should comply with 17 U.S.C. § 512(c)(3) and include at least the following things:

  1. Your name, address, telephone number, and e-mail address;
  2. A description of the copyrighted work that you claim has been infringed;
  3. The exact URL or web address where the alleged infringing material is located;
  4. A statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
  5. Your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
  6. A statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner’s behalf.

The decision to submit a DMCA Notice to a website should be made carefully.  DMCA Notices are NOT good for Reputation Management purposes and if you make any false statements in your demand (like you aren’t actually the copyright holder, etc.) the law does impose substantial liability for any damages and attorneys’ fees incurred as a result. 17 U.S.C. §512(f).

Do you have questions about the DMCA Notice process or other general Copyright related questions? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  
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Digital Millennium Copyright Act: It’s NOT for Reputation Management

Let me start out by saying that if your entire business model is based on submissions of Copyright infringement notices (“Digital Millennium Copyright Act Notices” or more commonly referred to as “DMCA Notices”), you should first have a clue about: 1) what goes in one; and 2) what circumstances will likely be found by the court as “infringement.”  If you can’t even get that right, you are doing a disservice to both your customer and are risking litigation against you.  #PetPeeve Yes, I have services in mind but they shall go unnamed.

I understand that in today’s modern world it is incredibly easy for someone to take a picture that posted of someone on the internet and then turn around and upload it elsewhere.  Indeed, depending on the circumstances, it may very well be an instance of Copyright infringement and a DMCA Notice may very well be warranted.  There is an entire legal analysis that often goes into determining Copyright infringement and those who are untrained should consult legal counsel who regularly handles Copyright infringement issues to help walk through the elements.

Notwithstanding the above, if you think that submitting a DMCA Notice to a site where such image is being used in connection with a review, in an effort to get that review or image to be removed from that site, you are likely going to fall flat and may have just wasted time and money.  Why? Because such use is more likely than not going to be considered “fair use” by a court.

The doctrine of fair use is codified at Section 107 of the Copyright Act, 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work … for purposes such as criticism [and] commentary … is not an infringement of copyright.”); see also Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir.2001) (“copyright does not immunize a work from comment and criticism.”).  Similarly, courts around the country have upheld the fair use doctrine for the type of claim that most people write to review websites about, i.e., an image connected with a critical review. See Dhillon v. Does 1-10, Not Reported in F.Supp.2d, 2014 WL 722592 (N.D.Cal. 2014) (finding of fair use when Plaintiff’s professional headshot was used for article criticism and commentary); Galvin v. Illinois Republican Party, Slip Copy, 2015 WL 5304625 (N.D.Ill. 2015) (finding of fair use when Plaintiff’s photograph was used in a flyer for the purpose of criticism and commentary); Katz v. Chevaldina, Slip Copy, 2014 WL 2815496, 111 U.S.P.Q.2d 1281, (S.D.Fla. 2014) (finding unauthorized use of unflattering photo of businessman in a blog that is critical of his business practices to be fair use as a matter of law); Katz v. Google, Inc., —F.3d—, 2015 WL 5449883 (11th Cir. 2015) (finding of fair use when blogger used a photograph of a businessman, which he owned the copyright to, in a posting that was to deter others from conducting business with businessman); and Weinberg v. Dirty World, LLC, et al., 2:16-CV-09179 (C.D.Cal. Jul. 27, 2017) (finding fair use when photograph, captured from a video clip which Plaintiff had rights to, was uploaded to an online review website to “ridicule, mock, and critique” the figures in the image).

Moral of the story: if you are considering using a DMCA Notice (or hiring some Reputation Management company who uses this “method”) in effort to try and get postings or images removed from the internet…you should seriously reconsider your strategy. Chances are such companies (or law firms – I’ve seen ridiculous letters from attorneys too) are just taking your money and you may not get the results boasted about. Remember, there has to be a good faith believe that the use is infringing and when there is an abundance of case law that says “fair use”…one questions the “good faith” requirement.

Are you a business that operates a website where you regularly receive DMCA Notices? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

 

Trademarks and Fair Use in Commentary

I have clients who operate websites that allow third-party content.  While NOT my clients, think about sites like Yelp, Twitter, Glassdoor, or even Facebook as examples. When you operate websites that allow other people to go online and write whatever they want, chances are you are going to see an allegation of Trademark Infringement via a cease and desist letter.  I typically see them in the context of someone alleging trademark infringement because someone is using the trademark to talk about them online – most often critically.  These cease and desist letters come in from attorneys (which I always raise an eyebrow at), reputation management companies (again which I raise an eyebrow at) and everyday people which I can better understand because many simply don’t have an understanding of this area of law.

Due to the overwhelming issues that I see with these cease and desist letters, I thought it might be good to cover some basics:

What is a Trademark?

A trademark is a word, name, symbol, or device, or any combination thereof, that is used to distinguish the goods of one person from goods that are manufactured or sold by others.  Think of it as telling people the source of the goods.  Think of “Pepsi” or “The Home Depot” for example.  Those are trademarked words that clearly distinguishes them from other sources of goods like “Coca-Cola” or “Lowe’s.”

Protecting your Trademark.

It is important to police your trademark so as to keep it from falling by the way of generocide (death by becoming too generic due to its popularity and/or significance) or being counterfeited (knock-offs). A common example of generocide includes trademarks like “escalator” for the moving staircases.  If you are curious you can read more about generic trademarks.  A common example of trademark counterfeiting includes the cheap knock-off/fake Louis Vuitton handbags.  You know, the ones that look like it’s the real deal at first glance but any savvy fashionista knows better upon closer inspection.

Trying to use Trademark as a Reputation Management Method.

Yes, there are times when you should be policing your trademark as discussed above. However, just as I cannot talk about The Home Depot without saying “The Home Depot,” the same goes for anyone else wanting to talk (or write), good or bad, about a particular brand. Such use falls under what is called “nominative fair use” which applies when a person has used one’s trademark to describe or refer to the trademark holder’s product. As with most aspects of law there are caveats and tests, however, generally speaking, just because you have a registered trademark doesn’t mean that you can submit cease and desist letters and allege trademark infringement as a way to get websites to take down content critical of your business.  Chances are, in that context, it is NOT trademark infringement.

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

Five Benefits to Keeping Your Business Lawyer in the Loop

Let’s face it, the word “lawyer” for many is akin to a four letter expletive that people are offended by. Typically because it reminds people of getting sued and/or having to shell out, often unexpectedly, loads of cash that they rather have spent elsewhere…like on a vacation.  Similarly, like in all professions, not all lawyers are created equal, and not all lawyers really have their client’s financial interests at heart – after all, being a lawyer and having a law firm is a business. I personally pride myself on NOT taking advantage of my clients…giving them direction on how they can do things themselves and helping only where they REALLY need/want it…but after 18+ years in the legal field, I know that not all lawyers share my same client-friendly mindset. It is no wonder that people cringe at the thought of having to use a lawyer.

Lawyers don’t have to be a thorn in your side through.  In fact, a good lawyer can be a business’s greatest adviser and advocate – keeping in mind that a job of a lawyer is to tell you what you NEED to hear which can sometimes be very different than what you WANT to hear. All businesses should have a lawyer or two that they keep in regular contact with and it should be part of your regular business operating budget.

Before you go thinking I’m crazy, here are a few reasons that keeping your lawyer updated on the goings on of your business is advantageous:

  1. Lead Generation: Your lawyer can often be your biggest cheerleader (and lead generator) for future customers. Chances are your lawyer is tapped into many different networks.  You never know when someone they know will need your business’s products or services and a solid referral from your lawyer could be future revenue in your pocket.
  2. Idea Generator: An attorney that understands you, your business, and your goals can be an invaluable asset when it comes to creative thinking.  Brainstorming on new ideas with your lawyer may prove to be helpful in that they may be able to think of concepts outside the box for your business that you may not have already thought about.  What if that lawyer helps you generate the next million dollar idea?
  3. Cost Cutting: One thing that many lawyers are good at is organizing and streamlining processes – it’s part of the way we think.  What if your lawyer was able to give you ideas on how to streamline an existing process that will considerably help cut costs moving forward?  If a few hundred dollars for your lawyer’s time on the telephone could save you thousands of dollars in the next year, wouldn’t you do it?  Sure you would.  You’d be a fool not to.
  4.  Risk Mitigation: When you brainstorm with your lawyer on a new business concept, they can often help you plan your road-map to reach your goals and help you navigate around pitfalls that you might not even think about.  For example, when clients come to me talking about setting up a new business I always ask them the business name and ask if they have considered any reputation issues with that new business name.  The same goes for contracting issues, employee issues, etc. To that end as well, there is a LOT of bad information being circulated around on the internet. Indeed it is wise to conduct your own research but don’t you think it prudent to have your research double-checked by someone who knows where to actually find the correct information when it comes to the law? As Dr. Emily So once said, “better information means better ideas, means better protection.”
  5. Cost Effective: It is a lot cheaper to keep your lawyer up to speed on your business as it grows, even if through a short monthly 15 minute call, than it is to try and ramp your attorney up (trying to teach them everything about your business, including policy changes and the like in a short amount of time) when you suddenly need advice in order to be reactive to a situation – like when you are named as a defendant in a lawsuit.  When you are named as a defendant in a lawsuit, you typically only have 20 days (varies by court and jurisdiction) from the date that you are served with a complaint in order to determine what your defenses are and what sort of a response you will need to file.  That process becomes a whole lot easier if your attorney already knows about you, your business, it’s policies and procedures, etc.  It is also easier to to budget in a few hundred dollars a month to keep your attorney up to date then to get smacked with a request for a $20,000.00 retainer, most of that potentially being eaten up just “learning” about your business, and then having subsequent large litigation bills.

As you can see, there are many reasons to regularly communicate with your attorney and hopefully you would find it more advantageous and beneficial than paying your monthly insurance bill. As Benjamin Franklin once said, “an ounce of prevention is worth a pound of cure!”

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

ADA Compliance and Websites: Yes, it’s really a thing.

I’ve said it before…it seems like everyone today has a website.  Whether you are a stay at home mom blogger, operate an e-commerce boutique shop, a local mechanic shop with a basic website or a full blown tech company – chances are you are no stranger to the internet and websites. Websites are how people find and interact with you or your company. Depending on what your website is designed for, you may have more risks to consider.  For example, as I recently discussed, if your website hosts third-party content, there are risks associated with that kind of a website.  Similarly, if your website collects email addresses so that you can later market to them, that presents an email marketing risk. This article is going to briefly discuss a new potential risk for website operators – that is compliance with the Americans with Disabilities Act of 1990 (ADA).

You might be thinking: “How could a website become an issue with the ADA?”  That was my initial reaction too until I considered people who are blind or have a hearing impairment.  It’s easy to take for granted senses that we are used to having.  Think of all the “closed captioned (cc) for the hearing impaired” text that we have heard/seen on the television in the past.  Well, how does that work for those videos that you are making and posting to your website?  How do people navigate your website if they can’t see? Until a recent conference I had never even thought about how a visually impaired person accesses the internet.  I have since discovered that the visually impaired often access the internet through a special screen reader.  JAWS seems to be the most popular and I found a few interesting YouTube videos that give a demonstration of the JAWS program from different perspectives.  If you are curious, like I was and want a unique perspective that may help you with your website accessibility, you can see two of the links I found HERE and HERE.  The second video is from a student’s perspective which has a lot of good insight – including difficulties with .pdf documents, etc.

The above examples coupled with the legal actions that have been taken against websites in relation to an ADA claim, and the fact that I am starting to see solicitations from Continuing Learning Education companies teaching attorneys how to initiate actions, sends a solid message that this is something people/businesses need to be thinking about as they move forward with their existing websites and/or build out  new websites.

THINGS TO KNOW AND UNDERSTAND:

  • The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination and ensures equal opportunity for persons with disabilities in employments, State and local government services, places of public accommodations, commercial facilities, and transportation.
  • These laws can be enforced by the Department of Justice (DOJ) through private lawsuits and indeed there are cases where the DOJ has specifically stated in rulings that websites should be designed so that they are accessible to those who have physical disabilities including vision and hearing.
  • The DOJ has already required some websites to modify their sites to comply with the ADA guidelines – see the Web Content Accessibility Guidelines (WCAG) 2.0.
  • There is no set required standards YET but it’s expected soon and they may require compliance within 12 months from the date of publication of the new standards to the public register.  If you have a big website, and perhaps a lot of changes that will need to be made, that isn’t a lot of time.

WHAT IS BEING LOOKED AT FOR COMPLIANCE?

WebAIM.org appears to be a pretty decent resource for information.  They have a pretty comprehensive checklist that may assist you and your website developing team out, however, below is a few points for consideration:

Information and user interface components must be presentable to users in ways they can perceive.

  • Guideline 1.1: Provide text alternatives for any non-text content so that it can be changed into other forms people need online – think of large print, speech, symbols or simpler language.
  • Guideline 1.2: Provide captions and alternatives for multimedia.
  • Guideline 1.3: Create content that can be presented in different ways (for example a more simplistic layout) without losing information or structure.
  • Guideline 1.4: Make it easier for users to see and hear content including separating foreground from background.

User interface components and navigation must be operable.

  • Guideline 2.1: Make all functionality available from a keyboard.
  • Guideline 2.2: Provide users enough time to read and use content.
  • Guideline 2.3: Do not design content in a way that is known to cause seizures (like flashing content)
  • Guideline 2.4: Provide ways to help users navigate, find content, and determine where they are.

Information and the operation of user interface must be understandable.

  • Guideline 3.1: Make text content readable and understandable.
  • Guideline 3.2: Make web pages appear and operate in predictable ways.
  • Guideline 3.3: Help users avoid and correct mistakes.

Content must be robust enough that it can be interpreted reliably by a wide variety of user agents, including assistive technologies.

  • Guideline 4.1: Maximize compatibility with current and future user agents, including assistive technologies.

WHAT IF MY WEBSITE ISN’T COMPLIANT?   

For websites that aren’t compliant the following are some things you should consider:

  • Have a 24/7 telephone number serviced by a live customer service agent who can provide access to the information on the website – the phone number must be identified on the website and be accessible using a screen reader.
  • Consider starting to make adjustments to your website to help ensure you are compliant.

NEED HELP ENSURING COMPLIANCE?

It is always a good idea to get a formal legal opinion on these kinds of matters if in doubt. Being proactive is a far better position to be in than being reactive and in a time crunch and money might be tight. If you are in the state of Arizona, and need help with suggestions on how to help make your website ADA compliant or would like to discuss this topic generally so that you have a better understanding of how this issue might impact your business, Beebe Law, PLLC can help!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

 

So You Want to Run a Website: Common Risks When Hosting Third-Party Content

It seems like EVERYONE today has a website.  Whether it be a personal blog to a full scale business – websites are how people “find” and often “interact” with you today.  However, just like any business, it doesn’t come without risk.  This article will address a few of the most common areas where a website operator can incur liability if they want to host third-party content (i.e., you want to allow people to post and/or comment on postings).

To begin with, as I have referenced in my prior articles regarding Troubles with Defamatory Online Reviews and Content ScrapersThat Would be Harsher Punishment for internet Defamers StanWhy Google De-Indexing May NOT be an Effective Reputation Management Solution, etc., at least in the United States, the federal law often referred to as the Communications Decency Act, aka Section 230 or the “CDA” generally immunizes websites from third-party content.  In layman’s terms, this means that an internet service provider, such as a website, is not typically liable for content written by a third-party.  That does NOT, however, mean that you don’t have to be cautious.  In fact, the intricacies of the law surrounding the CDA can be quite complex.  It would be tragic for an unsuspecting business to be sued into bankruptcy over preventable little mistakes.

The following are a few common areas of potential liability:

INTELLECTUAL PROPERTY:  Intellectual Property, including claims of Copyright and Trademark Infringement are NOT barred by the Communications Decency Act.  If a third-party puts content on your website that infringes on someone else’s Copyright or Trademark, you could be held liable.

DEVELOPING CONTENT:  Depending on how you solicit and/or edit a third-party’s content you could be held liable.  Many of plaintiffs have argued against website’s editorial decisions or even what sort of requirements/fields are built in for website users to enter information into, can take them outside of the protections of the CDA.

If you are considering starting up a new website or a business with an existing website it is wise to take these matters into account at the very beginning, or as soon as otherwise practicable.  Moreover, individuals and businesses are wise to consult an internet lawyer that practices in internet law when beginning to lay out their business plan for their website.  A consultation fee now can save you THOUSANDS in the long run.

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  If you are in the state of Arizona, and seeking consultation in the area of infringement relating to Copyright, Trademark, or other risks associated with being a website and hosting third-party content, contact Beebe Law, PLLC today.

 

 

 

 

So Good You Can’t Make It Up | A Collection From the #MoronFiles

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those here for your reading pleasure:

07/05/2017 – A “Nominal Defendant” | Following a nice four day weekend it’s always fun to come back to the office to a freshly filed complaint against one of your clients. Said complaint was filed out of state (one in which does NOT have jurisdiction over my client for a host of reasons including Plaintiff having agreed to jurisdiction elsewhere), the “cause of action” (which isn’t really a cause of action in the first place – apparently Plaintiff’s counsel confuses causes of action with remedies) is without legal merit, and counsel called my client a “nominal defendant.” Let’s be real here; there is no “nominal defendant.” ALL defendants (in most cases anyway) will have to extend valuable resources and time to deal with even the most handicapped complaint by filing motions to dismiss for lack of jurisdiction or other defenses.  You can’t paint a rainbow on birdshit and call it a rainbow…no, it’s still birdshit.  You know, just so we are clear…

06/16/2017 – You Know You Are A Lazy Lawyer When | It’s been a busy few weeks to say the least.  This one will be short and sweet.  If you are going to spend the money to serve someone, you should probably spend some time actually trying to figure out the proper entity to name and statutory agent first.  A way you start this is by trying to run a search in this really cool search engine called Google.  And then you can also use these cool public websites where businesses are registered called the Corporation Commission for the particular state.  That will not only give you proper entity spelling but also who the proper statutory agent for service is.  Now don’t get me wrong, I know that sometimes that can be easier said that done for some entities…BUT…this particular one I have in mind is EASILY found online.  What this tells me: lazy lawyer probably just billed his client for less than half ass work that will result in NOTHING because it’s not valid. #Ignored #FeelingSorryForTheirClient

06/13/2017 – F’n LitigatorsNo offense to any of the “normal” professional litigators out there because I work with some AMAZING ones…but what the hell is with the scorched earth approach right out of the box?  You are not an ape.  Stop pounding your chest.  I understand getting a little frustrated after repeated inquiries  (when there is merit to your position) however, when you come out of the box swinging, threatening meritless litigation (because you are too lazy to f’n do some legal research before running the diarrhea of the fingers on your keyboard) you are not setting yourself up for good things to come.  This is especially true when you are asking for a favor – you know, asking someone to do something they are not legally obligated to do.  You can bet that counsel like me will remember your shit attitude in the future, your name will be marked on the “shit list”, and you won’t be given any courtesies in the future.  Your shitty attitude has just screwed any future clients who may be similarly situated.  You want to be helpful to your clients?  Check that ego at the door. Respect begets respect and people remember how you treat them.

05/31/2017 – You Signed Your Name on This? | So here is a new one for the books.  A business client of mine is served with a third-party Subpoena Duces Tecum (fancy way of saying it’s asking for documents or things) today.  Today is May 31st – and this is important and you will see why in a minute.  Okay, standard procedure…except: 1) it’s an Amended Subpoena (never received the original subpoena); 2) allegedly issued from a state court that is in another state (so yeah, that’s not going to work – domestication pal); 3) asking for information to be provided back in the middle of April “to avoid having to make an appearance” (so, we get to time travel like Marty McFly?); 4) the said date of appearance was also scheduled for back in the middle of April (hmmm, must be banking on more of that time travel); 5) the date of said Amended Subpoena was dated back on the first of this month (so you know, the document production and/or appearance was supposed to occur BEFORE it was even signed AND the person apparently couldn’t get it served for over 30 days); 6) the Subpoena had no case number; and…oh, this is the best part… 7) WAIT FOR IT…WAIT FOR IT…when I looked up the case caption…there is no case pending with that case caption in that court!  You have got to be kidding me!?!  To top it off, right there at the bottom of this pile of crap is the name, bar number and signature of the attorney that paid to have it served upon my client.  Well alrighty then Shady McShaderson…

  • 06/08/2017 – UPDATE on “Shady McShaderson” | Just when you thought that things couldn’t get any more ridiculous than what was mentioned above…when “Shady McShaderson” got called out for above mentioned antics the response back was basically that the law of the state allows for attorneys to do a subpoena without a case number.  Ummm, come again?  I’m well aware of the pre-litigation discovery process in the particular state and this is NOT in line with the procedure, pal.  I don’t care what color you paint your abuse of process turd…it’s still a stinky turd!
  • 8/23/2017 – UPDATE on “Shady McShaderson” | Whoa! Shady McShaderson got a case going! So after sending a BS subpoena, for a case that doesn’t exist, Shady McShaderson and realized we’ve ignored it, the genius counsel finally filed a case!  What did said genius counsel do? Provided us with a case number.  That’s it?  What a fricken moron.  Come on…how much lazier and shadier can you get?  Of course such action was called out and it was explained, again, what the PROPER procedure is…  The response “no worries…”  Where do they find these people?  And how do they keep a bar license?

05/23/2017 – I Demand! | Perhaps not as good as the prior entry, however, this is still worth a note because it is one of my biggest pet peeves. If an individual or entity is NOT (emphasis on the NOT) legally obligated to take any action in connection with your situation one wonders what in the world counsel is thinking when they write a letter and use the phrase “I demand…” in bold and underlined, in the closing of their letter. You “demand!?!” What? Are you my mother asking me to do my chores or else I’m going to be grounded for the summer? Given the fact that your tone is complete shit, and my client has ZERO legal obligation to do anything, your “demand” is now being filed away and NOT responded to. #DENIED! Why? Because I’m not interested in dealing with an ass-hat and you have now given me NO incentive to even look at your materials.  Moral to the story: Like my momma always says “you catch more bees with honey than you do with vinegar.” I subscribe to that philosophy…plus I like to treat others as I would expect to be treated.

05/12/2017 – Disbarred Attorney | Today I reviewed a rather rude communication from an individual who wrote a meritless threatening letter (and I mean, the person couldn’t possibly have a viable claim based upon statute of limitations and other precedent law given the situation) making dumb statements and signed their name with “a Dallas lawyer” and a request that the communication be taken seriously.  Sure thing there good buddy!  Well, when I receive communications that I perceive to be on the “shittier side of Sears” (my spin on the old “softer side of Sears” advertising) I will look into the individual.  Ah, low and behold said “Dallas lawyer,” was DISBARRED from the state of Texas over two years ago for some rather naughty stuff…as in the crime allegedly committed is a felony in the state.  Right there, on the State Bar website, CLEAR AS DAY, it said this person was DISBARRED.  The State law there says that you are not a lawyer in the state unless you are licence to practice there.  So, no person, that makes you NOT a Texas attorney…and, in fact, your state can make holding yourself out as an attorney, when you aren’t, a felony.  Get that? F-E-L-O-N-Y.  Yeah, poor decision on your part.  Asshat.

Until next time friends…

 

Website Terms of Service: You Are Responsible for Your Own Actions

In my practice I write and review website terms of service with some regularity.  Most website Terms of Service have sections that relate to a users online conduct; that is, the rules that the website expects you follow when using their website.  If you don’t read anything else (because let’s fact it, unless you LOVE fine print, you probably aren’t going to read it) you absolutely should review the section that discusses what conduct is expected of you.  If you aren’t going to follow the rules don’t use the website.

Yes, this sounds like a no-brainer, right?  You’d think so, however, you would be fascinated to learn how many people don’t pay attention to these things and then, when they get busted breaking a Terms of Service rule, they come back and try to blame the website for the rule!  Um, no.  How about you try taking some responsibility for your own actions?  Yeah, let’s try that.

WHAT DO THE TERMS OF SERVICE SAY ABOUT MODIFICATION OR REMOVAL OF CONTENT?

Many websites will allow users to post content and then edit or remove the postings at a later date.  Consider sites like Facebook for example.  Other websites will give you only the ability to delete postings, but not edit, as seen with sites like Twitter.  At the same time many websites will not allow a user to edit or remove information once it is posted, regardless of the circumstances.

I typically see these no-removal rules often with complaint/review styled websites and this information is usually spelled out in the Terms of Service and, in some cases, elsewhere on the website.  Why would a website make such a rule?  Some websites claim that the reason they have a no removal policy, especially on a review/complaint type website, is because those websites believe that people will be bullied into taking truthful content down when the public really should be warned about bad actors or bad businesses.  I suppose the websites figure that if they have a rule against removing content, it doesn’t do the bad actors or bad businesses any good to harass the poster because the information is going to remain up anyway.  Yes, I know this opens Pandora’s Box for the “but what if…” statements and I know well the arguments against such non-removal rules, but I will not engage in that here because I’d be writing a dissertation and I’m trying to keep on topic and make this relatively short.

TERMS OF SERVICE:  WHY YOU SHOULD CARE.

Unfortunately, from my perspective, most people don’t care about these kinds of things and go on there merry way using a website, posting content, etc, – until they are threatened with litigation over something they posted.  Defamation is against the law and is actionable.  Most websites will make you agree, per their terms of service, that you will not do anything illegal.  They might even spell out that you have to tell the truth if you are posting a complaint or review.  Unfortunately, people either can’t read, don’t know what “truth” means, or otherwise don’t give a crap because they write stupid stuff anyway.  If you say something mean and untruthful online about someone else or someone else’s business – there is a possibility that you will see a defamation action against you.  Heck, even if what you say is truthful, you still could see a defamation action against you.  It’s the way the world these days – people sue over the most ridiculous stuff! Yes there are defenses to such claims, like the truth, however, if you use an attorney, it’s going to be legal battle that you will have to fund.

Typically a person considering litigation is going to go the easiest route and ask the person who posted the information to simply remove it.  If the person posted the information to websites like Facebook or Twitter, chances are one can just log into their account, edit or delete the content at issue, and be done with it.  HOWEVER, what happens when you posted the content to a website that specifies, right in their terms of service, that you can’t remove the posting?  If that is the case, chances are, that content isn’t coming down – even if you ask and regardless of the situation.

DON’T BLAME THE WEBSITE FOR YOUR MISTAKE.

Now we are getting to the ironic part.  A person will use a website, knowingly break the rules (such as posting false and defamatory stuff) and then, when they get a letter from a lawyer or a lawsuit against them, all of the sudden get concerned about what they wrote and will try to figure out how to take it down.  It’s like when you’ve been speeding, know you were speeding, and act all surprised when you get pulled over by a cop and quickly try to make an excuse for why you were speeding – as if that is going to somehow change the fact that you broke the law by speeding.  When an author gets a letter from a lawyer about a posting online the first thing they do is try to take it down.  In some instances they can remove the content…but that doesn’t always work as I explained above.  It amazes me how many people will write to a website asking for their stuff to be removed even when the terms of service, and the fact that someone can’t remove something after it was posted, was made abundantly clear before they made the posting.  When they get told “no” somehow that comes as a shock.  What happens next, in my experience, is one or any combination of the following:

  1. Excuses of why they wrote what they did.  The whole I was mad/sad/hurt shouldn’t have done it story.  This is what I call fools remorse.
  2. Allegations that “someone else” wrote it. People will literally allege that their “minor child” wrote the sophisticated well written posting about a business dealing. Uh huh, sure they did…and way to throw your kid under the bus.
  3. Stories of how the author/user of the website is “special.”  Most people that claim “special circumstances” aren’t all that unique when compared to anyone else.  I know your momma thinks you are special – but a website probably isn’t going to think so.
  4. Statements of “I wrote it.  It’s false…so you HAVE to take it down!”  No, actually the website doesn’t (at least under current federal law) and are you basically admitting that you breached the contract with the website that said you wouldn’t post something that is false?  Hmmm, that doesn’t seem like a very smart argument.
  5. I’m going to sue you if you don’t take it down!  Cool story – the current law doesn’t support your position and you are making yourself look like ass.  By the way, those terms of service that you agreed to by using the website or otherwise “checking the box” saying you agreed – yeah, that’s called a contract.

I wish I was making this stuff up but I have literally seen all of these kinds of excuses/stories made by people who are getting into trouble for what they posted online.  If you are one of THOSE people – you deserve to get into trouble.  The most ridiculous position that one can take is to be mad and blame a website for having known consequences to a rule THAT YOU BROKE.  That’s like being mad at the law makers who created the speed limit when you get into trouble because you broke the law by speeding!  No one made you speed.  Own the problems that you create.

Bottom line; read the Terms of Service before you use a website.  If you break the rules (especially if you are a harasser or defamer) don’t get mad at the websites for having the rules and consequences (that you failed to consider when you broke the rules) applied to you.  You have to own and accept responsibility for your actions – regardless of how hard of a pill that is to swallow. 

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

Texas Court Paving the Highway for Abuse of Anonymous Authors’ Rights One Pre-Litigation Discovery Order at a Time: Glassdoor v. Andra Group

The United States has long held close to its heart the right for authors to speak anonymously.  However, protecting an anonymous author is getting more and more difficult these days.  The March 24, 2017 ruling by the Appellate Court for the Fifth District of Texas in Glassdoor, Inc., et al. v. Andra Group, LP certainly didn’t help either.

In my practice I see volumes of subpoenas sent to websites holding third-party anonymous content requesting the anonymous author’s identifying information.   Most of the time Plaintiffs file a John or Jane Doe defamation related litigation, which preserves the statute of limitations, and then they conduct limited discovery in order to ascertain who the proper defendants are and move forward from that point.  Typically, most states have some sort of notice requirement to the anonymous author that would provide them the opportunity to appear and defend their right to remain anonymous.  In the state of Arizona we have the controlling case of Mobilisa v. Doe, 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24 (App. 2007).  It’s common for websites to raise objections on behalf of an anonymous author when the appropriate basic standards have not been met and, as I recently discussed in another article regarding Glassdoor, courts are ruling that websites like Glassdoor have the standing for the same.  This process, including giving author notice in a reasonable way, has always seemed fair to me.

Unfortunately, there seems to be a loophole that many Plaintiffs are taking advantage of, and it can be problematic for anonymous authors and websites alike.  I think that pre-litigation discovery tools (Illinois Rule 224, Texas Rule 202, etc.) are being abused in cases dealing with anonymous authors.   While I firmly believe that purposeful defamers and harassers should have the book thrown at them (i.e., fines, community service and/or educational requirements), often times the burdens on the plaintiff are not that high, it may not require notice to the author, and once an anonymous author’s information is revealed you can’t un-ring that bell.  I believe that pre-litigation discovery tools need either a very high threshold, have a notice requirements like that of Mobilisa or, alternatively, be barred in cases where a party is utilizing it to seek anonymous author information.

In this case Andra filed a Rule 202 petition against Glassdoor seeking to discover the anonymous reviewers’ identities relating to some ten (10) allegedly defamatory postings made about it.  Glassdoor, along with two (2) of the anonymous authors, filed an anti-SLAPP dismissal motion.  The trial court denied the motion and granted in part the Rule 202 petition which basically allowed Plaintiff to take the deposition of Glassdoor (even though claims against Glassdoor were not anticipated) regarding two (2) of the anonymous postings, not written by Glassdoor nor either Doe 1 or Doe 2, and was going to limit the deposition to five specific statements within those reviews.  Glassdoor and the anonymous authors understandably appealed the trial court’s ruling.

The Appellate court then skipped over the whole concept of anonymous free speech when it justified the trial court’s order by stating that “[k]nowing the reviews’ contents alone did not tell Andra [plaintiff] whether it had viable claims against the anonymous reviewers” and that “Andra also needed to know not only the reviewers’ relationships with Andra to evaluate potential defensive issues such as substantial truth.”  See Memorandum, p. 7.  Yeah, you read that right.  The balancing test on pages 8-10 are equally problematic and even through the trial court limited the deposition of Glassdoor to a handful of statements the author(s) of the selected statements still didn’t necessarily have notice nor necessarily the opportunity to appear and defend.  Even more troubling is the statement by the Court “[b]ut Rule 202 does not require a petitioner investigating a potential claim to show a probable right in relief on the merits.”  See Id, pg. 12.  Say what?  So a Rule 202 petition can be a BS fishing expedition, not give notice to an author of the BS fishing expedition, require a website to extend time and resources to sit for a BS fishing expedition and/or raise all defenses that may otherwise lie with the knowledge of an author, and that is all okay?  Who made up this batch of Koolaid?  How can the Court not see how this is paving the highway for abuse by plaintiffs?

You can review the entire Memorandum Opinion here: 

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Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

 

 

Why Google De-Indexing May NOT be an Effective Reputation Management Solution.

What reputation management companies should know, defamation lawyers probably already know, but clients either aren’t being warned about or the clients are willing to try it anyway…

So your client comes in and complains that someone defamed them on the internet.  You put on your Super Lawyer cape and rush in to save the day.  No problem, you’ll walk through the litigation, get a court order that tells Google to remove, block or otherwise de-index the content from their search engine and, viola!  Problem solved, right?  WRONG.

While I sort of eluded to these issues in my blog article troubles with defamatory online reviews and content scrapers, just because search engines like Google will agree to de-index (which arguably, at least in the United States, they are under no obligation to do thanks to Section 230 of the Communications Decency Act) doesn’t mean that the content goes away.  Indeed, it remains alive in many ways:

  1. The complaint that you filed, which contained the alleged defamatory language and or copies of the alleged defamatory postings is STILL part of the public court record and, in theory, always will be – most of which is accessible online;
  2. The website that hosts the alleged defamatory content may refuse (rightfully under the current US laws) to remove the content regardless of whether or not it is found to be defamatory;
  3. Google might “de-index” but they pretty much give people a road map on where to find the information via the Lumen Database and provide, where applicable, the supporting documents like a court order which, if people are smart and interested, they can find more information about the litigation through court records; and
  4. Under most privilege laws, one could write a story about the court case, even repeating verbatim the defamatory language right out of the court record, without penalty.

Indeed, if you search out a particular name in Google, and you see, at the bottom of the search results a statement about the matter having been removed from the search engine links, chances are, someone had information removed for some reason.  Typically a link to the Lumen Database is provided by Google and parties can click on that link to learn more about why the information was removed and what links were subject to being removed from the search results.

Depending on the situation, this “de-indexing” may not even last that long.  All a website has to do, if they were so inclined, is to update the URL and that would render the original URL de-index essentially useless.  The party who submit the information would then have to go back and try again by either getting another court order or resubmitting what they have to Google again – but then it could become a game of whack-a-mole and for what? The information is STILL available anyway.

I completely understand wanting to find a solution for relief for those that have genuinely been harmed online but I think there needs to be a shift from trying to bury and cover things up to providing A LOT more education regarding these issues (why people should be leery of what they read online, ways to not get themselves into these problems in the first place, constructive ways of handling issues) and perhaps, as I said recently, come up with harsher punishment for internet defamers.

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.